Sir Jeffrey Jowell QC and Naina Patel: Miller Is Right

Even those of us who question the notion of absolute parliamentary sovereignty (eg. whether it should trump the rule of law in extreme situations such as the abolition of judicial review) wholly subscribe to the view that parliament, not the executive, should make or unmake our domestic laws.

In the case of R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), therefore, it seems plain that that in principle the prerogative power should not displace the power of parliament to trigger our withdrawal from the European Union (“EU”). Yet some of our respected colleagues writing on this website contend otherwise, drawing for analogy upon areas as remote from the Miller context as double tax agreements and the decision to exile the inhabitants of the Chagos Islands. Others are seeking to throw doubt on the Divisional Court’s judgment in Miller by questioning one of the assumptions on which the decision was premised (but not one without which it would necessarily change) namely, that once a notice under Article 50 TEU has been made, it cannot be revoked.

We shall here first deal with the question of parliament or prerogative, and then proceed to consider the revocation point.

Prerogative power or parliament?

If the critics of Miller are correct, the logic of their position is that, at any time since 1972 and in the absence of any referendum whatsoever, the Prime Minister could have lawfully concluded and ratified an exit treaty with the other Member States with the effect that, without more, the UK’s rights and obligations and those of its citizens arising under the EC/EU Treaties would have come to an end. Could that possibly square with the European Communities Act 1972 (‘The 1972 Act’) which states clearly that all rights (etc) “from time to time created or arising by or under the EU Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly”? Such an executive Act would have frustrated – indeed driven a coach and horses through – the obvious intent of the 1972 Act which is to give effect to the rights and obligations of membership of the EU arising under the EU treaties.

First, it is surprising that it is suggested that the use of the prerogative in this context must be excluded by express words or necessary implication as Professor Endicott suggests, as if the prerogative were an independent source of domestic power and authority in the context of treaty making. While the prerogative power does remain in respect of the making of treaties (whereas in many other cases it has narrowed or disappeared entirely), as Kieron Beal QC points out, even the first edition of Wade’s Administrative Law (1961) identified that, “as such they cannot affect the rights of subjects” (at p.13). This has not changed up to the present day (see the tenth edition at pp.181-182 and the eleventh edition at pp.179-180) as the cases analysed by Professor Campbell McLaughlan QC in his reply to Professor Feldman demonstrate. Our dualist system cannot be placed on its head so that domesticated rights under a treaty can be removed by prerogative alone when they cannot be conferred in that way. This much follows from Articles 1 and 2 of the Bill of Rights 1689. Once treaty obligations are committed to domestic law, those laws cannot be removed by simply withdrawing from the treaty.

Second, when we look at the 1972 Act, it is clear that it did not contemplate departure from the EU at the time of its passage. We see this from the fact that Article 50 was then absent from the EC Treaties, having been included for the first time in the TEU. As such, at that time there was no mechanism under EC law for leaving the EC with the result that the Treaties only envisaged the creation of new rights and the amendment of pre-existing ones but not their wholesale abrogation. This is reflected in the long title of the Act and the side heading of s.2, both entirely permissible aids to interpretation (see, for example, Ealing London Borough Council v Race Relations Board [1972] 2 WLR 71 at 361 and In Re Phelps [1980] Ch 275 at 281C), as the Divisional Court recognised at §93(1)-(2) of its judgment.The one-way nature of the 1972 Act was therefore fundamentally different to those double tax treaties that contain clear escape clauses to which Professor Finnis has pointed.

Nor can it realistically be said that the adding of the TEU to the list of treaties in s.1 of the 1972 Act by s.2 of the European Union (Amendment) Act 2008 altered this. Article 50(1) TEU provides only that a Member State may decide to withdraw from the EU “in accordance with its own constitutional requirements”. It is therefore circular to suggest that in having sight of Article 50, parliament sanctioned withdrawal through the use of the prerogative alone. In fact, no consequential amendments were made to the text of the 1972 Act to reflect the introduction of Article 50 into the EU Treaties as §68 of the Divisional Court judgment recognises. And yet clear and express words are what would be expected if it were truly the case that the 1972 Act envisaged executive withdrawal from the Treaties and therefore its own repeal. An analogy might be drawn with the proper interpretive approach to Henry VIII clauses, an example of primary legislation making provision for the removal of rights by the executive. As Craies on Legislation, 10th edition (2012) explains at §1.3.11, “the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation”. So, the House of Lords has twice cited with approval the observation of Lord Donaldson of Lymington MR in McKiernon v Secretary of State for Social Security (1989) 2 Admin LR 133, 140 that “the duty of the courts being to give effect to the will of Parliament, it is in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.” Both passages were recently endorsed by Lord Neuberger in R (PLP) v Lord Chancellor [2016] UKSC 39, [2016] 3 WLR 387 at §§ 26-27.

Third, a restrictive interpretative approach to the 1972 Act is even more warranted by, but does not depend on – as Nick Barber, Jeff King and Tom Hickman originally observed – the status of the 1972 Act as a “constitutional statute” which “incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law”: see Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2002] QB 151 at §62. As a result of this, a great deal of our law would effectively be repealed if the UK withdrew from the UK.

To begin with the constitutional system itself, the 1972 Act provided that all laws made by the European Parliament were laws of this country, thus introducing the doctrine of direct effect. Unlike tax treaties, which require an Order in Council to take effect in domestic law as Kieron Beal QC has explained, EU Directives take automatic effect by reason of s.2(1) of the 1972 Act. Thus, traditional dualist principles are overridden and the distinction between EU rights and statutory rights is blurred as Professor Young has suggested. Professor Elliott and Dr Hooper’s reliance on cases such as Thoburn to suggest otherwise, with respect, does not assist. While they rightly identify that in that case, the court found that EU law had no legal status or effect in the UK separate from that provided for by domestic legislation, the very reason EU law is sui generis as a matter of constitutional law is because domestic law has provided for its direct effect. So whereas the rights conferred by an Order in Council remain even if the underlying tax treaty has been revoked (unless the Order in Council already contains express provision governing the termination of its arrangements) because they are given independent existence in domestic law through replication in that Order, the same is not true in relation to the rights conferred by s.2(1) of the 1972 Act upon the UK’s withdrawal from the EU precisely because that provision acts as a “conduit” through which EU rights take effect as domestic rights without the need for such replication.

The 1972 Act also provided a fundamental constitutional innovation by specifically conferring prior authority to those laws over our own acts of parliament, such that any subsequent inconsistent act would need to be disapplied. This innovation was consistent with the principle of parliamentary sovereignty because parliament (not the executive) retained the right to reverse this arrangement and decide that EU laws should no longer be given priority over domestic statutes. This innovation was made by parliament and parliament alone and there is nothing in the 1972 Act that supports the proposition that this major constitutional change could be reversed without parliament’s authority.

Section 3(1) of the 1972 Act then states – quite independently of section 2(1) – that the question as to the meaning and effect of any Community instrument shall be treated as a question of law and contemplates references to the CJEU. The obvious purpose of this provision is that EU law is to be part of UK law and that the CJEU is to be the highest authority on the meaning of that law. If the UK withdraws from the EU, that provision – quite apart from the rest of the 1972 Act – makes no sense.

Our domestic law and practice is shot through not only with rights, but, in the language of section 2(2) of the ECA, also with “…powers, liabilities, obligations and restrictions” as well as “remedies and procedures” arising under the Treaties. Staying within the 1972 Act we find detailed provisions about customs duties, agricultural levies, and EU offences, all of which are clearly predicated on EU Membership. But even outside the 1972 Act there is, for example, the Parliamentary Elections Act 2002, which makes no sense outside of the EU context. There are also practices (such as passporting arrangements) and procedures (such as extradition pursuant to European Arrest Warrants) that would fall away without EU membership. And indeed arrangements not to enforce domestic legislation which has been disapplied under EU law (such as relating to stamp duty following the judgment in Case C-569/07 HSBC Holdings Ltd and Vidacos Nominees v The Commissioners for HM Revenue and Customs). Even if a general act were introduced seeking to preserve all rights conferred under EU law, many of them would be rendered nugatory or meaningless if we were no longer part of the EU decision-making structures. If this is to be done, then it is for parliament so to do.

Revocation

The parties in Miller agreed that a notification of intent to withdraw from the EU under Article 50 cannot be withdrawn: see §10 of the Divisional Court’s judgment. If these positions are held on appeal – and as others have explained, there are sound political quite apart from legal reasons why they may well be – then the issue may be moot. However, in our view, those who criticise the parties for the stance they have hitherto adopted are wrong to do so.

To contextualise the argument, it is important to consider carefully the various requirements of the withdrawal process. Once there is a decision to notify withdrawal, the process consists of four stages:

(i) First, an agreement to exit. This agreement includes “arrangements for withdrawal” (the ‘how’ of withdrawal); and second, the date of entry into force of the agreement (the ‘when’ of withdrawal – after which the Treaties shall cease to apply).

(ii) Art 50(2) talks of “an agreement”, in the singular, but it requires the “arrangements for withdrawal” also to look forward and “take into account the framework for future relationship with the Union”. So it seems that a second framework agreement is also contemplated, setting out a framework for any future deal with the EU, potentially followed by a third more detailed agreement reflecting the full terms of the new relationship between the UK and the EU.

These agreements must receive the consent of the European Parliament and then be concluded by the Council acting by qualified majority.

(iii) Thirdly, there is the cut-off period. If there is failure to reach the agreements within two years after the notification, the Treaties cease to apply ( ie. automatic exit by default on WTO terms – “the guillotine procedure”).

(iv) Fourthly, there is a possibility of an extended period of negotiation, but only with the unanimous consent of the member states.

Do these requirements permit the revocation of the notification of the intention to withdraw?

Those who believe that revocation is possible invoke the authority of the Vienna Convention on the Law of Treaties 1969, Article 68 of which provides that a notification to withdraw from a treaty may be “revoked at any time before it takes effect”. It is said that Article 68 constitutes a principle of customary international law such that it is binding on the EU. However, as Jake Rylatt has explained, it is far from certain that the principle is part of customary international law. In any event, as the Court of Justice of the European Union (‘CJEU’) has established on a number of occasions, it is clear that the EU Treaties establish an autonomous legal order with its own rules, under which there is no need to invoke an international law interpretative standard: see, for example, the early Case 16/62 ECR I Van Gend en Loos [1963] ECR I, [1963] CMLR 105 at 129 and, more recently, Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council and Commission [2008] ECR 2008 I-06351, [2009] 1 AC 1225 at §282. So, by way of example, the CJEU has rejected recourse to the Convention in cases such as Francev Commission [1994] ECR I-3641 [1994] 5 CMLR 517 in favour of the provisions of the [EEC] Treaty (at §§25-26).

Whether or not that is so, it seems to us that Article 50, both in its legal and practical context, provides a complete code for withdrawal, a lex specialis, in the form of a self-contained procedure for exit by two exclusive means, namely, (a) by agreement/s or (b) by default (the guillotine procedure). Taken together, their purpose is clear, namely:

(i) To avoid prolonged uncertainty, and

(ii) To give the EU the upper hand in negotiations. In this way, the EU can simply sit tight until the 2 year period arrives, if it is determined to get its way on the terms of the exit or indeed to force the exit of a Member State that does not conform to EU values. In such a case, the only road back will be a fresh application under Article 49 TEU.

Such a purpose is consistent with a teleological approach to interpretation. After all, Article 1 TEU refers to the TEU as marking “a new stage in the process of creating an ever closer union among the peoples of Europe” and Article 53 provides for the TEU has having been entered into “for an unlimited period”. Such provisions support an interpretation of Article 50 which gives the cards in the exit process to the EU, so as to dis-incentivise Member States from withdrawal. While we recognise that the contrary view could also be taken, so as to view these provisions as supportive of an approach that allows a Member State every opportunity to change its mind and remain in the club, we note that this is not the view reflected in a recent European Parliament Briefing Paper “Article 50 TEU: Withdrawal of a Member State from the EU”, February 2016.

The option of a unilateral revocation of a notice of intent to withdraw from the EU under Article 50 would surely frustrate these clear purposes. There is certainly no treaty right to a change of mind as the terms of Article 50 clearly permit the EU to play out until the end of the 2 year period. It may be that the EU would accept an agreement within that time that reflected the status ante quo, or something close to it. But that would not entail a reversal of the negotiating process. However, to allow the UK unilaterally to withdraw its notice to withdraw does not seem to be in the contemplation of the provision. At the least, it would in all likelihood require the unanimous agreement of all EU states.

With thanks to Jeff King for his comments on an earlier draft.

Professor Sir Jeffrey Jowell KCMG QC, practising barrister at Blackstone Chambers; Emeritus Professor of Public Law at UCL and Founding Director of the Bingham Centre for the Rule of Law (2010-15)

Naina Patel, barrister at Blackstone Chambers and Senior Fellow in the Rule of Law, Bingham Centre of the Rule of Law

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“If the critics of Miller are correct, the logic of their position is that, at any time since 1972 and in the absence of any referendum whatsoever, the Prime Minister could have lawfully concluded and ratified an exit treaty with the other Member States with the effect that, without more, the UK’s rights and obligations and those of its citizens arising under the EC/EU Treaties would have come to an end.”

This is wrong for two reasons.

First prior to the incorporation of Article 50 into EU law by the Treaty of Lisbon, no such mechanism for unilateral withdrawal was incorporated into EU law. To exit the EU would have required the agreement of other member states: see the Vienna Convention on the law of Treaties.

Second prerogative power, even at the international level, is almost certainly reviewable for rationality. So the PM can’t just make up one morning and dispatch the letter.

Here the exercise of the Art 50 power is not irrational: because of the referendum result (even if it is wrong to do so).

1. Art 68 VCLT reflects the same fundamental principle as exists within domestic law. It is of course for the CJEU to decide whether the principle contained therein should be applicable in relation to Art 50. However the fact that the EU is an autonomous legal order does not mean that it rejects principles of interpretation found in the canonical treaty on treaty interpretation, or in national law.

2. The evidence that exists from the framing of Art 50 points in precisely the other direction from that taken by the authors of this blog: the two year period was put in for the benefit of the withdrawing state, not the benefit of the EU.

3. It is noteworthy that Lord Kerr the architect of Art 50 stated that it was in his view revocable.

4. Irrevocability would cause intractable problems for the withdrawing state, which I set out in earlier writing.

5. The sole argument that is put in favour of irrevocability is that this would be beneficial for the EU. This is however highly questionable in its own terms, and is not the view taken by the majority of EU lawyers. The reason is not hard to divine: a state decides bona fide 6 months after notification of withdrawal that it has made a mistake and that it wishes to remain in the EU. Irrevocability would mean that it must nonetheless wait for a further 18 months and then be marched peremptorily out of the EU door. I can think of nothing more likely to damage the image or functioning of the EU in the eyes of its citizens. The damage to the EU in such circumstances would moreover be seismic if the withdrawing state was a Germany or France, which had pushed the withdrawal button under the influence of a short lived right-wing anti-European party, and then sought to revoke only to be told that this was not possible.

6. Whatsoever view one takes on this the issue is clearly not acte clair in favour of irrevocability.

First, and most importantly. the words of the provision make no mention of the Member State having any such power of withdrawal.

Second, the provision does allow for a delay in execution, but requires unanimous agreement of Member States to do so. This may be read as excluding both the stopping of execution, and a Member State having the unilateral power of choice.

Third, as the institutions of the European Union, and other Member States, will have begun the process of adjusting to such withdrawal, such a unilateral power in the Member State may be thought unfair. The clear tenor of Article 50 is to give the balance of power to the Union, and not the withdrawing Member State.

Fourth, the alternative interpretation leads to ridiculous results. Could a member state give notification, withdraw it one day before the expiry of the two year limit, and re-start the entire process on the following day?

Reasons such as “important persons think it is revocable” don’t amount to anything in law, IMO.

Professor Craig’s point 5 is catered for in the lex specialis text of Article 50, if the withdrawal agreement can be given the non-literal interpretation that it can include the member state remaining in the EU.

There appears to be an emerging consensus that a member state intending to withdraw can remain in the EU by consensus.

I think the focus should be on interpretation of the withdrwal agreement no on the concept of revocation.

In the blog you refer to it states: it is a cardinal legal principle that a party is not bound by a contract or treaty until agreement has been reached. Prior to that point a party can walk away from the negotiation. …..It is true that civilian legal systems have principles concerning good faith in contract. There is, however, no reason to believe that such principles would be broken where a state concluded bona fide that withdrawal was not in accord with the national interest when the concrete reality of the deal became apparent.”

I suggest that the argument that the prerogative is available precisely because Parliament could withdraw notification would not constitute good faith. How that plays out amongst the 27 member states heaven knows.

The French might say, “Moyens brexit brexit” and the Germans, “Bedeutet brexit brexit”. Doesn’t make any more sense in those languages.

Art 68 VCLT is excluded by Art 50. Treaty law, 101. Lord Kerr? Not a judge.Don’t care what he thinks. I can’t buy Paul Craig’s point 5 – irrevocability doesn’t mean the state gets “marched peremptorily out of the EU door”, it means it needs to do a political deal to stay. And why not? it’s the one that kicked it all off, not the other 27 MS.

Nostalgic, but not particularly pleasant memories of the Thoburn case, those being of the vilification directed towards The Council Officers involved ie Weights and Measures Inspectors; nothing changes, regrettably! Miller case has regenerated my “little legal grey cells” at aged 70; I was involved in regulatory law enforcement and what may best be described as consumer and trader advice work, now, in retirement, I find aspects of constitutional law interesting and stimulating, and am gearing myself up for a lot of reading during December. then January. For what it is worth I tend to the view that there is merit in the High Court decision. Wonder what the late and very learned Lords Bingham and Denning would have had to write about it…

I do not consider the boundary of royal prerogatived therefore its relationship with parliamentary sovereignty the main legal issue in Miller & Santos v The Secretary of State for Exiting the EU.

At issue are whether fundamental constitutional law principles are correct and the legitimacy of the UK Judiciary.

In a democracy such as the UK, the result of a referendum is not justiciable should be a foundational and fundamental constitutional law principle.

Dicey’s proposition that ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.’, as quoted in paragraph 22 of the judgement is only true in the absence of referenda. That is to say, Parliament is only sovereign in the absence of referenda. This is because MPs are only ever representatives of the electors. This relationship between the electors and MPs should be stated explicitly as one of UK’s fundamental constitutional law principles. And notice Dicey used the word electors and not electorate.

The High Court, in allowing itself to be embroiled in the result of the June 2016 UK’s EU membership referendum, has put at risk the legitimacy of the UK Judiciary.

The legitimacy and authority of the UK Judiciary comes from its independence and impartiality. One of the main reasons the public accepts the authority of the Judiciary is because it is an impartial adjudicator. In order to be an impartial adjudicator, judges must have no personal involvement at all in the legal issue(s) arising from the dispute which is the subject of litigation before him or her.

The underlying legal issue in dispute in this case, all too obvious, is the legal validity of the June 2016 UK’s EU membership referendum result. The High Court tacitly acknowledged this in paragraphs 16 and 106 of the judgement. By paragraph 106 of the judgement in particular, the High Court effectively overturned the referendum result. For the High Court to pretend otherwise in paragraph 108 of the judgement is hypocritical to say the very least.

The proposition in paragraph 106 of the judgement that a referendum on any subject can ever only be advisory is incorrect. One needs to look no further than the European Union Act 2011 see why.

The registered voters turnout rate for this referendum is 72.21%, higher even than the 2015 general election. The Leave side secured a majority of 3.78%. Ever since Edward Heath took the UK into the EU by surprise over 4 decades ago, UK’s EU membership has always been controversial. The narrow majority in this referendum serves to remind ourselves UK’s EU membership is a highly charged political issue. Even if members of the UK judiciary did not vote, they must have a personal view on this highly charged political issue. I cannot see how the UK judiciary can possibly be impartial in this case.

Justice Michael Kirby of the Australian High Court is openly gay. When he was a sitting justice, he used to recuse himself from cases involving gay issues to ensure impartiality of the Australian High Court is not impaired and seen not to be impaired. It is a wise act to preserve the legitimacy of the Australian High Court. It is an example the UK Judiciary well advised to follow.

‘Our dualist system cannot be placed on its head so that domesticated rights under a treaty can be removed by prerogative alone when they cannot be conferred in that way. This much follows from Articles 1 and 2 of the Bill of Rights 1689. Once treaty obligations are committed to domestic law, those laws cannot be removed by simply withdrawing from the treaty.’

Articles 1 and 2 read (or, I suppose, once read):

‘That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;’

The Government is not proposing to revoke or suspend any laws. So it doesn’t ‘follow’ directly, so far as I can see. Nor, so far as I can see, would any laws be ‘removed’ as you seem to claim. It is true that the result of withdrawing from the EU would be that the ECA – if it were retained, for sake of argument – would become an empty shell – and then it would follow that certain rights would be lost.

But surely there must be some distinction in law between an action and necessary consequences of an action? And surely the letter of the law as written is of some importance? This is to say to the authors that if you desire to convince me of your argument, you have to take me through this further stage.

Finnis has pointed out (Brexit and the balance of our constitution, 1 Dec 2016) that the UK has withdrawn from double tax treaties (Virgin Islands 1971, Netherlands re Dutch Antilles) by prerogative, with resulting loss of domestic rights. The Lead Claimant admits (29(5), Written Case to Supreme Court), that the UK Government can and has withdrawn from double tax treaties by prerogative, with loss of domestic tax relief.